Just last week the Supreme Court took a long hard look at something called “Auer deference” and decided that it would remain the law, but with some strings attached. Kisor v Wilke, No. 18-15 (June 26, 2019). I’ve never once had the occasion to mention Auer deference in this blog or in any brief I’ve filed in disability lawsuits, but the decision could have an impact on future disability rights litigation. In this blog I’ll consider the possible impact on litigation under the Fair Housing Act. In the next I’ll look at what turns out to be the more complex possible effects on litigation under Titles II and III of the ADA. Before I explain why, I should refer anyone interested in a detailed analysis of the decision to William Goren’s blog on the subject here.* More
FHA reasonable accommodation
By Richard Hunt in FHA, FHA definition of handicap, FHA Emotional Support Animals, Reasonable accommodation Tags: FHA Defense, FHA reasonable accommodation, FHA reliable evidence of handicap or disability
A client of mine was recently advised that the client’s FHA forms for reasonable accommodation requests were illegal because “The law specifically prohibits inquiry into the nature or extent of a disability.” This is a common misconception, and one that can easily result in an apartment complex full of supposed therapy animals owned by individuals who are not disabled. It is worth understanding where this misconception came from and what the law really allows. More
By Richard Hunt in Accessibility Litigation Trends, FHA, FHA Emotional Support Animals, FHA Guidance, FHA Regulation, HOA, Policies and Procedures FHA ADA Tags: assistance animals, FHA "dwelling", FHA reasonable accommodation, HUD regulations, Sanzaro
Sanzaro v. Ardiente Homeowners Ass. et al, 2:11-cv-01143-RFB, 2017 WL 5895133 (D. Nevada June 29, 2017) asks whether the clubhouse in a planned development is a “dwelling” for purposes of the Fair Housing Act. The Court doesn’t answer the question, but is one worth thinking about when trying to decide how the idea of disability discrimination applies to common areas in any kind of housing development or apartment complex.
The Fair Housing Act itself has a somewhat confusing definition of dwelling. A “dwelling” is:
any building, structure, or portion thereof which is occupied as, or designed or intended for occupancy as, a residence by one or more families, and any vacant land which is offered for sale or lease for the construction or location thereon of any such building, structure, or portion thereof. More